WASHINGTON, D.C. - On July 10th, the Heritage Foundation hosted Scholars and Scribes to discuss the 2017-2018 Supreme Court term and of course, President Trump’s nomination of Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the Supreme Court bench when he steps down at the end of the month.
The discussion featured a panel of three lawyers: Willy Jay of Goodwin and Proctor, John Elwood of Vinson and Elkins, and Neal Katyal of Hogan Lovells. John Malcom, Vice President of the Institute for Constitutional Government, moderated.
The panelists discussed issues such as whether the court came down on the right side of the big decisions of the term, if any broad themes emerged from the Roberts court and whether or not Justice Neil Gorsuch has changed the balance of the court. How religious freedom will move forward in the wake of the Masterpiece Cakeshop case was touched upon as well.
It has been a big year for the Supreme Court, which decided on cases such as the travel ban, and the Masterpiece Cakeshop. Sixty cases were decided by the Supreme Court in the last term, which is an historically low number. However, in terms of what cases were decided it was a significant year, said Neal Katyal.
The Roberts Court has tried to steer the court towards unanimity. Three years ago the court agreed 2/3 of the time handing down 9-0 decisions, a rate that has not been seen since the year 1940, according to Neal.
In the past term, the rate of unanimity has dropped to 39 percent, to find a similarly low unanimity rate in a Supreme Court term, one would have to go back to the year 2008. During the past term, Justices Ginsburg and Sotomayor agreed 95.8 percent of the time, while Justices Thomas and Alito agreed 93 percent of the time. However, Justices Sotomayor and Alito disagreed 49.3 percent of the time and Justices Sotomayor and Thomas disagreed 50.7 percent of the time, according to stats cited by Katyal.
Justice Thomas has continued his tradition of writing the most opinions, writing 31 in the last year, as compared to Justice Kagan’s nine.
“As some of you saw, Judge Kavanaugh in his remarks yesterday went out of his way to talk about something which I have really noticed in his hiring patterns, which is, he does hire a lot of female clerks,” said Katyal. He went on to point out that in the last term, women only argued 19 times or 12 percent of the time, however he said that he believes we will see these numbers start to change.
Concerning the travel ban there are two primary issues, statutory and constitutional, said Katyal, who argued the travel ban case before the Supreme Court. The statutory issue breaks down to has Congress given the president the power to enact the travel ban under 1182 (the broader statute), according to Katyal. The Constitutional argument is that, as the Supreme Court has said repeatedly that the First Amendment prohibits establishment of a religion on the other side of the same coin, it prohibits a dis-favorite religion, said Katyal. He argued before the Supreme Court that the president’s remarks in his capacity as president essentially made the travel ban a Muslim ban. In the Chief Justice’s opinion he said that the proclamation was facially neutral, and thus should not be gone behind to discover examine other things, especially if it meets the rationale basis test.
Willy Jay spoke on the Masterpiece Cakeshop case and how it will impact religious freedom moving forward. The Colorado Civil Rights Commission had essentially stated that no one would associate Jack Phillips with the gay wedding. However, in other cases the Colorado Civil Rights Commission had rejected complaints filed by a religious customer who had requested several Colorado bakeries create a custom anti-gay cake, each of the bakeries refused. The Colorado Civil Rights Commission rejected the complaints filed by the religious customer based on the grounds that of course no bakery would want to be associated with an anti-gay message. So the Supreme Court decided the case essentially saying that the Colorado Civil Rights Commission cannot have their cake and eat it too, if you will.
These were just a few of the defining cases of the 2017-2018 Supreme Court term that were discussed. Of course, the panel could not ignore the nomination of Judge Kavanaugh. Each of the panelists commented on the appointment on Kavanuagh, but the general consensus of the panel was in supportive of Kavanuagh’s appointment.
“I almost feel bad for him that he’s being nominated for the seat that is kind of the swing seat, so for folks who care about abortion, affirmative action, or marriage equality, and if there’s going to be a fight here that maybe were this a different seat you wouldn’t have necessarily seen it in quite the same way…it’s incredibly hard for anyone who has worked with him, appeared before him, to frankly say a bad word about him, this is an incredibly brilliant, careful person, but someone who will move the court in a conservative direction,” said Katyal.
“I am tremendously impressed with they guy, he writes incredibly thoughtful opinions…his dissenting opinions frequently become Supreme Court majority opinions along the way,” said Elwood.
“He’s a very careful and meticulous judge, extremely well prepared. He comes from the D.C. circuit, he’s obviously deeply imersed in separation of powers and in the law governing the administrative state, and one of the ways in which he is going to replace Justice Kennedy and potentially change the court…is in what cases they are going to choose to hear going forward,” said Jay.